FINAL REPORT T O
NATIONAL COUNCIL FOR SOVIET AND EAST EUROPEAN RESEARC H
TITLE : CONSTITUTIONAL EVENTS I N
YUGOSLAVIA, 1988-90 : FROM
FEDERATION TO CONFEDERATIO N
AND PARALYSIS ?
AUTHOR : ROBERT M . HAYDEN, J .D ., Ph .D .
CONTRACTOR : UNIVERSITY OF PITTSBURG H
PRINCIPAL INVESTIGATOR :
COUNCIL CONTRACT NUMBER :
ROBERT M . HAYDEN
804-06
DATE : July 1990
The work leading to this report was supported by funds provided b y
the National Council for Soviet and East European Research . Th e
analysis and interpretations contained in the report are those o f
the author .
CONSTITUTIONAL EVENTS IN YUGOSLAVIA, 1988-90 :
FROM FEDERATION TO CONFEDERATION AND PARALYSIS ?
EXECUTIVE SUMMARY
A NOTE ON SOURCES AND THE TIME-FRAME OF THIS REPORT
ii
.
INTRODUCTION
vi
1
FEDERAL RELATIONS AS A CONSTITUTIONAL ISSUE IN THE LATE 1980s
4
FEDERALISM/CONFEDERALISM : A CONCEPTUAL DISTINCTION
7
YUGOSLAVIA AS WEAK FEDERATION, 1974-1989 11
THE SLOVENIAN AMENDMENT CRISIS, 1989-90
The Initial Presumption of Federal Constitutiona l
Supremacy
Amending the Amendments : Summer, 1989
The New Doctrine of Republican Supremacy
Response from the Center : The Constitutional Court o f
Yugoslavia
12
A CONSTITUTIONAL STALEMATE?
A Clash of Principles
Continued Movements on the Constitutional Chessboard ,
Winter 1989-90
Drafting Amendments, March-May 1990
35
35
AN UNSTABLE STALEMATE?
Confederation and Paralysis Confederation and Human Rights for Minorities
48
51
54
FUTURE PROSPECTS : YUGOSLAVIA AND "EUROPE"
57
CONCLUSIONS AND IMPLICATIONS FOR U .S . POLICY
59
NOTES
61
REFERENCES
64
12
17
21
29
36
41
EXECUTIVE SUMMAR Y
Yugoslav constitutional development since 1988 has produce d
a problematical stalemate : while the constitutional basis of th e
one-party socialist state has been or is being removed through th e
elimination of most restrictions on political and economi c
activity, the liberating potential of this development i s
threatened by assertions of a doctrine of confederation that woul d
deny that the various republics are bound by the federa l
constitution . This doctrine, which has now been asserted i n
Slovenia and Croatia and is increasingly cited in Serbia, hold s
that republican laws and constitutions take precedence over thos e
of the federation, and would deny enforcement power over federa l
laws to federal institutions . The advancement of this doctrin e
seems based on a combination of old-fashioned nationalis t
chauvinism aggravated by mistrust of the implications o f
"centralism" under the four decades of communist rule . Yet th e
potential success of the confederalists has disturbing implication s
for the development of democracy anywhere in Yugoslavia, since i t
would block needed changes and also deny the rights of loca l
minorities . Indeed, it is possible that the confederal doctrin e
could produce a constitutional crisis that would lead to th e
breakdown of the country, an event which would almost certainly b e
accompanied by massive violence and forced population transfers ,
and probably lead to civil war .
In light of these dangers, it i s
incumbent on the United States and the dominant powers of wester n
ii
Europe to encourage a federal resolution to the Yugosla v
constitutional crisis .
This report describes and analyzes the massive changes in th e
constitutional structure of Yugoslavia that have occurred in th e
last three years, and that are continuing as this report is bein g
written . True to its identity as a non-conformist socialist stat e
in Europe, Yugoslavia began to reform its state-socialist syste m
years before the collapse of communism in the East-bloc countrie s
in 1989-90 . Official Yugoslav sources had identified the cause s
of the country's economic and political "permanent crisis" in th e
1980s as lying in the unworkable institutions of Yugosla v
self-management socialism, and serious efforts to reform th e
constitutional structures that both mandated and supported tha t
system began in 1987 . In November 1988 a massive set o f
constitutional amendments removed much of the underpinning of th e
economic institutions of self-management, but left the politica l
system and the system of relations within the Yugoslav federatio n
largely untouched . These limits were due primarily to th e
weakness of the existing federal structure, which permitted a vet o
of any change by any republic or autonomous province .
This cumbersome consensual structure had itself long bee n
criticized as one on the factors contributing to the crisis, sinc e
it had so often thwarted needed changes . The political environmen t
between the republics, however, was becoming increasingly tens e
throughout 1988, which led to decreasing cooperation between them .
Indeed, by mid-1988, news media throughout the country wer e
iii
referring to a "verbal civil war" between the various republics .
The initial impetus for this hostility seems to have been
a
reaction to assertions of Serbian national identity by a ne w
(October 1987) leadership of Serbia .
In 1989, the several republics and autonomous provinces of th e
Yugoslav federation began to amend their own constitutions ,
following the federal amendments . At this point, however ,
political pressures concomitant to increasing hostility betwee n
several of the republics produced a constitutional crisis when th e
Slovenian parliament passed amendments to the republica n
constitution that were clearly contrary to the federa l
constitution . Despite a provision in the latter that republica n
constitutions could not be contrary to the federal one, th e
Slovenes persisted, and in fact propounded a doctrine of republica n
supremacy over the federation . This effort to revise the basi c
structure of the federation is still under dispute . While th e
Constitutional Court of Yugoslavia has ruled against the Slovenia n
doctrine, politicians in other republics, notably Croatia bu t
increasingly in Serbia, are also endorsing it .
As this report is being written, the structure of the Yugosla v
federation may be seen as being in flux . The central governmen t
continues to assert what it sees as its constitutional powers ,
while political actors in several republics deny that th e
federation has any power . This conflict of principles has becom e
even more pronounced following the victory of nationalist parties ,
which asserted republican sovereignty as the bases of thei r
iv
respective platforms, in the republics of Croatia and Slovenia i n
the Spring of 1990 . At the same time, however, the most popula r
politician in the country is the federal prime minister, largel y
because of his attempts to reform the country's economy . Attempt s
are continuing to revise the constitutional structure of th e
federation, and a formal process for amending the federa l
constitution is well underway . The amendments may be vetoed b y
any of the republics, however .
At the time of writing (June 1990), a constitutional stalemat e
existed between those republican governments that asserted thei r
complete sovereignty (but not secession from Yugoslavia) and th e
federal government . The stalemate can exist indefinitely but i s
likely to be unstable, for several reasons . First, the doctrin e
of confederation serves to paralyze the federal government at a ,
time when systemic changes throughout the country are essential .
Second, adherence to the concept of the supremacy of nationality defined polities is likely to lead to oppression of loca l
minorities (e .g . Serbs in Croatia, Bosnians in Slovenia, Croats i n
Vojvodina), a development which would further increase tensio n
between republics . In this situation, international support fo r
the federation, and pressure for restraint on the republics, ma y
be needed to avoid the breakup of Yugoslavia .
v
A NOTE ON SOURCES AND THE TIME-FRAME OF THIS REPOR T
This report is largely based on materials published in th e
Yugoslav press, and the reader will notice particularly heavy us e
of the daily newspaper Borba .
Both the use of the press and th e
reliance on Borba deserve some comment . On the first subject, th e
constitutional debates in Yugoslavia have been extraordinaril y
public, with all of the newsmedia publishing reports, news analyse s
and essays by political, academic and other public figures . Fo r
an American reader, the Yugoslav press since 1988 has been strongl y
reminiscent of the American press at the time of the debate ove r
the adoption of the Constitution, and reminds one of the fact tha t
the Federalist papers were also written for newspapers, a s
contributions to current political debate . Thus I rely on th e
newspapers because that's where the action is .
As for
Borba :
since late 1987, the major newspapers an d
magazines in Yugoslavia have almost without exception becom e
increasingly strident organs for nationalist politics within thei r
home republics . The major exception has been Borba, the only paper
in Yugoslavia that has maintained an orientation toward Yugoslavi a
as a whole, without primary loyalty to any republic . Further ,
Borba
has continued its long tradition of printing government
documents : constitutional drafts and texts, and statutes . Fo r
these reasons,
Borba has seemed to me to be the most objectiv e
source of information on day to day Yugoslav politics .
Finally, in regard to the time frame of this report : like al l
other writers working on what has until now been known as Easter n
vi
n-
INTRODUCTIO N
The decade of the 1980s produced what Yugoslavs came to vie w
as a permanent crisis (stalna kriza) : a falling standard of living ,
with high inflation, high unemployment, a massive foreign debt ,
periodic shortages of consumer goods and essential commodities suc h
as medicines, and increasing nationalist tensions . After
a
protracted period of prevarication concerning the causes of thes e
problems (see Mencinger 1989), by the late 1980s virtually al l
political actors had come to recognize them as being manifestation s
of a systemic failure, the failure of the economic and politica l
structures of the famed self-management socialism which had bee n
institutionalized in the 1974 constitution . As a result, eve n
before the collapse of East European communism in late 1989 ,
Yugoslavia had begun the task of seriously reforming a faile d
socialist system . On November 29,
1988,
a massive set o f
constitutional amendments was promulgated, which scrapped some o f
the most cumbersome elements of self-management, such as the syste m
of fragmenting economic enterprises into "basic organizations o f
associated labor," and began to increase opportunities for economi c
activities by economic actors outside of the social sphere .
While the economic reforms begun by the 1988 constitutiona l
amendments were generally seen as useful, virtually all politica l
figures recognized them to be stop-gap measures, pending th e
complete reworking of the constitutional structure .' I n
particular, changes were seen as being necessary in regard to th e
political structure, with calls for secret ballots in multipl e
1
candidate (but not, then, multi-party) elections . Furthermore ,
changes in the structure of relations within the Yugosla v
federation were seen as necessary, although the reasoning behin d
this assessment varied . On one side, some political actors saw th e
federation as being institutionally so weak that it could not carr y
out basic administrative activities, to say nothing of reforms .
On the other hand, political figures in Slovenia enunciated a fea r
that the federation was in danger of being dominated by the larges t
republic, Serbia, under Slobodan Milosevic, its charismatic leade r
since 1987 . These politicians wanted the federation weakened ,
rather, than strengthened, to protect their own independence (see ,
e .g ., Ribicic and Tomac 1989) .
While constitutional debates in 1987 and 1988 centered largel y
on economic issues, by mid-1989 the major focus of constitutiona l
argument and analysis was on the nature of relations within th e
Yugoslav federation . This issue has become of overriding concer n
because it is really the key to the implementation of systemi c
reforms throughout the country . To put the matter bluntly, if th e
federation is incapacitated, prevented from effective action b y
institutional (constitutional) structure, whatever reforms it migh t
attempt are likely to be meaningless . Further, the incapacitatio n
of the federation is both symptom and cause of inter-republica n
discord which may threaten the continued existence of Yugoslavi a
as a state .
This report will analyze the rise of the issue of th e
structure of the federation as the central focus and key questio n
2
INTRODUCTIO N
The decade of the 1980s produced what Yugoslavs came to vie w
as a permanent crisis (stalna kriza) : a falling standard of living ,
with high inflation, high unemployment, a massive foreign debt ,
periodic shortages of consumer goods and essential commodities suc h
as medicines, and increasing nationalist tensions . After
a
protracted period of prevarication concerning the causes of thes e
problems (see Mencinger 1989), by the late 1980s virtually al l
political actors had come to recognize them as being manifestation s
of a systemic failure, the failure of the economic and politica l
structures of the famed self-management socialism which had bee n
institutionalized in the 1974 constitution . As a result, eve n
before the collapse of East European communism in late 1989 ,
Yugoslavia had begun the task of seriously reforming a failed ,
socialist system . On November 29,
1988,
a massive set o f
constitutional amendments was promulgated, which scrapped some o f
the most cumbersome elements of self-management, such as the syste m
of fragmenting economic enterprises into "basic organizations o f
associated labor," and began to increase opportunities for economi c
activities by economic actors outside of the social sphere .
While the economic reforms begun by the 1988 constitutiona l
amendments were generally seen as useful, virtually all politica l
figures recognized them to be stop-gap measures, pending th e
complete reworking of the constitutional structure .' I n
particular, changes were seen as being necessary in regard to th e
political structure, with calls for secret ballots in multipl e
1
candidate (but not, then, multi-party) elections . Furthermore ,
changes in the structure of relations within the Yugosla v
federation were seen as necessary, although the reasoning behin d
this assessment varied . On one side, some political actors saw th e
federation as being institutionally so weak that it could not carr y
out basic administrative activities, to say nothing of reforms .
On the other hand, political figures in Slovenia enunciated a fea r
that the federation was in danger of being dominated by the larges t
republic, Serbia, under Slobodan Milosevic, its charismatic leade r
since 1987 . These politicians wanted the federation weakened ,
rather than strengthened, to protect their own independence (see ,
e .g ., Ribicic and Tomac 1989) .
While constitutional debates in 1987 and 1988 centered largel y
on economic issues, by mid-1989 the major focus of constitutiona l
argument and analysis was on the nature of relations within th e
Yugoslav federation . This issue has become of overriding concer n
because it is really the key to the implementation of systemi c
reforms throughout the country . To put the matter bluntly, if th e
federation is incapacitated, prevented from effective action b y
institutional (constitutional) structure, whatever reforms it migh t
attempt are likely to be meaningless . Further, the incapacitatio n
of the federation is both symptom and cause of inter-republica n
discord which may threaten the continued existence of Yugoslavi a
as a state .
This report will analyze the rise of the issue of th e
structure of the federation as the central focus and key questio n
2
of Yugoslav constitutional reform, concentrating on the concret e
steps taken by various political actors and the justifications tha t
In doing so, I believe tha t
they have provided for their actions .
I am reflecting the dominance of this issue in the Yugoslav publi c
political discourse from summer 1989 up to the beginning of June ,
1990 . It will be seen that one of the major developments has bee n
an attempt to achieve the
de
facto
confederalization of th e
country, with a corresponding decline in the role of the centra l
government, a process that has been advanced by the elections i n
Croatia and Slovenia in Spring, 1990 . At the same time, however ,
proposals for further formal revision of the constitutiona l
structures have been raised by several major political entities, .
notably the Federal Executive Council ("FEC") and the Yugosla v
State Presidency, and these proposals are also discussed . Th e
paper concludes with an assessment of the implications of th e
constitutional developments for the continued functioning, an d
perhaps even the continued existence, of the Yugoslav federation .
The Yugoslav constitutional debate can not be dismissed a s
simply another chapter in the political history of one of the mor e
unusual states of post-war (or perhaps cold-war) Europe, of concer n
only to specialists on Yugoslavia .
The positions taken by thos e
who advocate a confederal Yugoslavia are of more general interes t
for reasons both theoretical and practical . At the level o f
theory, these constitutional arguments echo certain modern wester n
political scientists in their view of the ideal structure for a
multinational federation, notably Lijphart (1977 ; 1984) .
3
The y
thus provide the opportunity to examine these theoretical positions
in the light of a concrete situation, providing a test case o f
sorts . Nor is this examination merely an academic exercise . A t
a time when Europe is trying to find greater unity than it ha s
ever before achieved, actual political arguments concerning th e
viability of a multinational European state are clearly relevant ,
the more so since, as will be seen, the confederal position bear s
overtones of a darker side of the European political culture . '
FEDERAL RELATIONS AS A CONSTITUTIONAL ISSUE IN THE LATE 1980 s
Since its inception in its present form with the constitutio n
of 1974, the Yugoslav federation has been a loose one, with littl e
power at the center (see Burg 1983 ; Ramet 1985) . Indeed, th e
federation has long appeared to some observers to be more of a
confederation (see, e .g ., Nikolic 1989) ; in 1982, a Yugoslav
constitutional lawyer told the author that the federal structur e
most resembled that of the American Articles of Confederation ,
which had preceded the present Constitution of the United States .
Since the start of the economic and political "permanent crisis "
that characterized the country in the 1980s, Yugoslav authors hav e
discussed the confederal elements of Yugoslavia under the 197 4
constitution (see, e .g ., Miric 1984 :14-32 ; Stanovcic 1986 :195-218) ,
while a mixed group of Yugoslav and American scholars have seen th e
federation as "fractured" (Rusinow, ed ., 1988) . The debate withi n
Yugoslavia has been particularly heated since about 1987, with som e
4
politicians and scholars, originally mainly from Slovenia and mor e
recently (1990) from Croatia, arguing in favor of even less centra l
control, while others, mainly from Serbia but also from other part s
of the country, oppose the creation of an even more confedera l
state . The issue seems to have been brought first to th e
forefront of national (Yugoslav) political debate by th e
publication in 1987 of a "Slovenian national program" which man y
non-Slovenes viewed as separatist,' since it called for th e
creation of new constitutional structure for a sovereign Slovenia n
state, linked at most with the rest of Yugoslavia in a wea k
confederation .
In 1987 and 1988, constitutional issues over the nature of th e
Yugoslav federation were discussed primarily in regard to question s
raised by Slovenian writers and political actors .' The debates '
were primarily theoretical, however, without immediate implication s
for the structure of the federation, except insofar as thei r
existence served to preclude unanimity on revising the federa l
structure . Yet this was a crucial limitation, because by 1988 i t
had become apparent to most political actors that the relationshi p
of the federal units (republics and autonomous provinces) to th e
federation was both a cause of the economic and political crisi s
and one of the main stumbling blocks to reform of the economic an d
political institutions of the country . That is, the requiremen t
of unanimous approval by the federal units of most federa l
legislation meant that little real reform could be undertaken ,
while the devolution to the federal units of responsibility fo r
5
enforcing federal acts meant that, often, there was littl e
enforcement (see Nikolic 1989 and 1989a) . In the absence o f
unanimous agreement on the form that the federation should take ,
however, it was not possible to change the structure of relation s
within the federation when the constitution was amended i n
November, 1988 . Thus that first set of major amendments to th e
federal constitution left the (con)federal structure of 1974 almos t
untouched, and still a matter of political and intellectual debate .
Events in 1989-90, however, turned the debate over federalis m
in Yugoslavia from a matter of polemics over definitions to one o f
concern over the consequences of concrete political an d
constitutional acts . In particular, the actions of the Slovenia n
Assembly in late 1989 rendered the question of confederalism real :
if certain acts of the Slovenian legislature are valid, the n
Yugoslavia is a confederacy, regardless of the terminolog y
employed . Yet the formal structure of the Yugoslav federal stat e
has not changed since the adoption of the 1974 Constitution, a t
least not in regard to relations between and among the Republic s
and the Federation .' Thus the debates over federalism in 1989-9 0
have been over interpretations of a document that had been i n
effect for fifteen years . In essence, the actions of the Slovene s
constituted an attempt to transform the structure of the Yugosla v
state unilaterally, amending the Constitution without seeming t o
do so . While incremental change in constitutional structure s
through their reinterpretation is a familiar enough process ,
particularly to Americans, the changes in Yugoslavia are hardl y
6
incremental . Instead, they represent an attempt to transfor m
completely the structure of the federation -- and it is possibl e
that the federation can not survive such a change .
FEDERALISM/CONFEDERALISM : A CONCEPTUAL DISTINCTIO N
It is necessary to deal more precisely with some conceptua l
issues in regard to the nature of federal entities . The basi c
idea is clear : a federal state is one composed of two or mor e
constituent polities, each of which has sovereignty over at leas t
some aspects of life, but each of which is also subject to, an d
bound , by, the claims of a central authority over other areas o f
concern . This is a vague definition, but for good reason :
a
federation can not be defined in isolation, but rather only i n
contrast with two other political forms for a single stat e
containing more than one administrative division, confederation an d
the unitary state . These last two forms are polar opposites, henc e
ideal types, yet indispensable for considering federalism, whic h
can only be found between the poles, and thus encompasses a rang e
of specific divisions of power between the center and th e
constituent units .
The polar opposites can be defined more precisely . In
a
unitary state, territorial divisions are purely administrative ,
with no implication that a territory might have a legitimate clai m
to political power of its own . One might easily envision such a
unitary state, and perhaps find it in practice if not in forma l
structure in, for example, the USSR under Stalin .
7
At the othe r
end of the pole, a pure confederacy would be a multi-polity entit y
in which all claims to legitimate power lie with the constituen t
units of the confederation and the center having no coercive power ,
though it might be expected to serve as a coordinating body throug h
the exercise of moral suasion . This type of polity is also eas y
to envision, although it is less easy to find examples of it i n
recent practice, for reasons which may become clear as it s
implications are considered further below .
These polar opposites are actually opposite sides of the logi c
of sovereignty, which is a basic concept of modern wester n
political thought . The unitary state is one in which the cente r
is a sovereign power over the components, and the confederation i s
one in which the components are each sovereign and subject to n o
claims either by the center or by other components . Phrased in '
this way, the logic of the opposition is clear, and in fact ther e
can be no logical structure between them . Yet practical politic s
has its own logic, which may overrule the dictates of forma l
reasoning . Federation may well be a logical impossibility, bu t
it is in the same category as constitutionality, which Bentham sa w
as "nonsense on stilts" precisely because it, too, is contrary t o
the logic of sovereignty . Bentham was right in logic but wron g
in practice, an epitaph which may also be applicable to those wh o
would deny the validity of federal structures on logical grounds .
In fact, by viewing the federal form as lying between th e
poles of unitarism and confederalism, the federation become s
endowed with its own logic . If a component of a multiparty polit y
8
claims complete power for itself, it abandons the federal form fo r
confederacy ; while if the center claims complete power for itself ,
it also abandons the federal form for unitarism . Thus the logi c
of a federation requires the recognition of the claims o f
sovereignty of both center and constituent units, while denyin g
full authority to both . Inevitably, this illogical logic must mea n
that there are tensions inherent in the federal form, but thei r
existence is not a detriment . Instead, as the America n
federalists recognized, the existence of tension, of room fo r
legitimate claim and counterclaim, gives both opportunity an d
incentive for creative politics .
If these presuppositions are granted, then it can be seen tha t
federations may be nearly infinite in their variation between th e
two poles of unitarism and confederation . They can be graded on
the strength of the central power within its spheres of competence ,
however : a strong federation is one is which the central power i s
unquestioned in those spheres, while a weak federation would be on e
in which the central government's power to act even within it s
areas of competence is limited by the powers of the constituen t
units . On these criteria, it can be seen that the America n
federation is a strong one, due to the federal supremacy clause an d
the necessary and proper clause of the U .S . constitution .
When we look at the question of federation as a question o f
competing sovereignty, a corollary principle becomes clear as well :
a constituent unit of a federation must be bound by the legitimat e
acts of the central power .
The constituent unit can not avoi d
9
this obligation by asserting its own sovereignty without renderin g
the federation a nullity by moving to the confederal pole . Thi s
of course was the issue that plagued American constitutiona l
affairs from 1832 until the outbreak of the Civil War : the clai m
of full sovereignty of each state produced the claim to a stat e
right of nullification of federal acts (see Ellis 1987), and als o
made secession conceivable (see Bestor 1964) . The Civil War ca n
be seen as finally solving a constitutional question, whethe r
states in the Union still retained absolute sovereignty . As
Lincoln understood, the definitional logic of state sovereignt y
negated the practical logic of a federation, which is why the major
epitaph attached to his name in the 19th Century was not that h e
freed the slaves, but rather that he preserved the Union .
From the above discussion, it appears that a federation may ,
be weak or strong, but the sine qua non of its existence is tha t
neither center nor constituents may exercise full sovereignty . I n
turn, this precludes the possibility of secession by a constituen t
unit, and also precludes nullification of a properly adopte d
federal act by a constituent unit . However, once these criteri a
are met, a federation may take any number of forms . Whether it i s
thereby an efficient or effective unit is a different kind o f
question, separate from the basic one : whether it is indeed a n
entity endowed with political power .
10
YUGOSLAVIA AS WEAK FEDERATION,
1974-198 9
By the criteria discussed above, Yugoslavia under the 197 4
constitution has been a weak federation, but a federatio n
nonetheless .
The federation does have jurisdiction over th e
governance of certain areas (Const .
1974,
art .
281),
apart from
the powers of the federal units, and is thus a sovereign power i n
its own right . On the other hand, the federation under the
197 4
constitution, even as amended in 1988, is extraordinarily weak ,
dependent on the federal units for the exercise of many federa l
powers and even for the execution of many federal responsibilitie s
(see Nikolic 1989 :146-179) : any federal unit can veto the adoptio n
of any legislation that it wishes to obstruct, and many federa l
laws and regulations are to be enforced by the federal units rathe r
than by federal agencies .
Despite the center's structural weakness, however, until 198 9
the federation was in practice a political actor, able t o
participate in and influence events even when it could not dictat e
a result . For example, in his study of Yugoslavia as a n
international political system, Pedro Ramet (1984) was able to vie w
the federal government as a participant in political machination s
along with (but not superior to) the
various
republics an d
provinces, and thus perhaps first among equals . But the strengt h
of the federation could be seen in another way : it could not openl y
be ignored . That is, until the Slovenian amendment crisis of 1989 ,
the federal constitution and federal laws had to be given at leas t
lip service, and political actors had to at least make an attemp t
11
to justify their actions by reference to these federal instruments .
The import of the Slovenian amendments, however, was to bring thi s
principle into question : if certain of the Slovenian positions ar e
valid, then the federation is irrelevant, and no longer exists d e
facto if not de jure .
THE SLOVENIAN AMENDMENT CRISIS, 1989-9 0
The Initial Presumption of Federal Constitutional Supremac y
The Slovenian amendment crisis began in a very non-dramatic ,
even mundane, fashion . Following the amending of the federa l
constitution in November, 1988, it became necessary for the variou s
republics and provinces to amend their own constitutions, since the
federal constitution specifies that "Republican constitutions an d
provincial constitutions may not be contrary to the SFR Y
constitution" (art . 206) . This article and the one immediatel y
following it, which provides that "republican and provincial law s
and other regulations
. . . may not be contrary to federal laws "
(art . 207, as amended 25 Nov . 1988), are the closest parallels tha t
the Yugoslav federal constitution has to the so-called Federa l
Supremacy Clause of the United States Constitution (U .S . Const .
art . VI, § 2), but they had seemed to be sufficient . Professo r
Jovan Djordjevic described the "principle of the supremacy an d
priority of the Constitution of Yugoslavi a " in the following terms :
12
"If a republican (or provincial) constitution differs from th e
Constitution of the SFRY, the Constitution of the SFRY will b e
accepted" (Djordjevic 1986 :355) .
The republics and provinces had in the past amended their ow n
constitutions to reflect changes in the Federal constitution, an d
this pattern was continued immediately following the 1988 federa l
amendments . Thus when the Assembly of the Republic of Serbi a
passed amendments to the republic's constitution in February, 1989 ,
the Assembly President noted that these changes followed on th e
federal amendments, which were seen as enabling the republica n
action (Borisav Jovic, in S .R . Serbia 1989 :6-7) . When the
Slovenian Assembly began the process of amending the republic' s
constitution in the Spring of 1989, it also apparently operate d
under the assumption that its amendments were necessitated by th e
federal ones and must not be contrary to the federal constitution .
The materials accompanying the first publicly circulated draf t
(osnutek [hereafter, Draft))` of the proposed amendments noted tha t
the amendments had been prepared with two goals in mind : first, t o
coordinate with the recently passed amendments to the federa l
constitution, and second, to shape some "original solutions" whic h
expressed sentiments concerning constitutional amendments tha t
arose in discussions concerning the amendments to the SFR Y
constitution and concerning parts of the amendments on th e
Slovenian constitution (Draft, Introduction) . In fact, the second
goal was plainly seen by some if not all of the drafters as th e
more important of the two ; yet the need to describe the amendment s
13
as not contradictory to the federal constitution was clearl y
recognized, and addressed through the use of several techniques o f
presentation and argument .
One major tack taken was to phrase provisions that wer e
arguably not in accordance with the federal constitution as it ha d
itself been amended in terms of basic principles stated in th e
introductory parts of the Federal constitution (though no t
necessarily in the operative parts of that document) .7 For
example, the highly controversial amendment providing that th e
Republic of Slovenia possessed the "complete and unalienable right "
to "self-determination, including the right of secession," whic h
was arguably contrary to the operative parts of the federa l
constitution,' echoed some of the language used in the first lin e
of the Basic Principles at the beginning of that document ,perhas
in an effort to achieve unimpeachable moral and political, if no t
legal, authority .
A second tactic was to describe a controversial amendment a s
either a "supplement" or "completion" of a federal constitutiona l
provision . Thus . for example, an amendment on the right t o
organize independent labor using private property (draft amend .
23) was described in the "explanation" following it as being "equa l
in wording to Amendment XXI of the Constitution of the SFRY . "
However, the "explanation" went on to state that certain element s
of the proposed Slovenian amendment did differ from the federa l
constitutional amendment : "In contrast to the wording of th e
corresponding amendment to the constitution of the SFRY, however ,
14
there are more full examples of different forms of association ,
which make the regulation more clear and better illustrated as wel l
for practical execution" (Draft, "explanations" for Amend . 23) .
The explanation then mentioned that there were potential conflict s
between the federal constitution and the proposed amendment to th e
republican one, and that this could present difficulties :
there were warnings in the constitutional commission ,
that these provisions in the republican constitutio n
would be in direct conflict with the federal constitutio n
and ,would consequently violate the first section o f
article 206 of the constitution of the SFRY, by which a
republican constitution may not be in conflict with th e
constitution of the SFRJ .
Recognizing this possibility, the Draft stated that the provisions '
that were potentially in conflict with the federal constitutio n
should be examined, and kept if they were not found to be suc h
(Draft, "explanation" for Amend . 23) .
A third means of including provisions potentially in conflic t
with those of the federal constitution was to justify them on th e
basis of international agreements to which Yugoslavia was
a
signatory . Thus an amendment asserting Slovenian economi c
sovereignty, arguably in conflict with the Federal Constitution' s
provisions mandating a unified Yugoslav market (articles 251 an d
253), was justified on the basis of article 1 of the Internationa l
Covenant on Economic, Social and Cultural Rights,' the firs t
article of which provides that "all peoples have the right o f
15
self-determination .
pursue their economic
By virtue of that right they
. . . freel y
. development ." The legal argumen t
implied by this justification is that Yugoslavia's acceptance o f
the international covenant served to incorporate its terms into th e
organic law of the country, an argument that is given some suppor t
by the provision of the federal constitution's article 210, tha t
"international treaties which have been promulgated shall b e
directly applied by courts of law" (i .e ., that treaties onc e
ratified are applicable without the need for any legislative o r
administrative order authorizing their use) . However, th e
definition of "peoples" in this context is obviously problematic ,
as is the concept of "economic sovereignty . "
All of these approaches recognized, implicitly or explicitly ,
the supremacy of the federal constitution, in that provisions of ,
the republican constitution that were contrary to the federa l
constitution could not stand . Even attempts to counter federa l
constitutional provisions did so by invoking other elements of th e
same document . By mid-summer, 1989, however, this recognition o f
federal authority disappeared . Instead, Slovenian political actor s
virtually uniformly asserted a theory of confederal interpretatio n
that would serve effectively to deny any meaning to the federa l
constitution, and any power to the federation . This approach wa s
necessitated by the inclusion of new amendments which were plainl y
contrary to the federal constitution and would thus run afoul o f
that document's article 206, referred to above .
16
Amending the Amendments : Summer, 198 9
The proposed new provisions, described by Borba as "Amendment s
that Divide Yugoslavia," entered the Slovenian political proces s
during the public discussion of the Draft, in the late spring an d
early summer of 1989 . These revised amendments were published i n
Slovenia in July, 1989 as "proposed amendments" (rather than merel y
"drafts")," and became (in)famous throughout the rest of th e
country when a Serbo-Croatian version of them was published b y
Borba on August 7 ." Essentially, the new version (hereafter ,
Proposed Text) incorporated a series of new provisions and amende d
some of the ones already present in the draft, with both kinds o f
changes serving to reorient the meaning of the document as a whole .
Some changes were innovative in post-war Yugoslav politica l
life, yet not particularly controversial, since they served to ,
liberalize politics in accordance with principles proclaimed i n
various international human rights documents . Thus a new amendmen t
41a would guarantee the right of free, peaceable assembly ; articl e
42 would prohibit the death sentence and torture, and guarantee
a
long list of freedoms derived from international human right s
agreements : freedom of movement, the right to judicial proces s
before being sentenced, and the right to privacy . Amendment 4 3
provided for freedom of religion and guaranteed rights to children .
None of these provisions were questioned at the national level .
Other amendments, however, have some potentially disturbing
implications . A new Amendment 8a, on the right to fre e
participation in politics, transformed the "Basic Principles" o f
17
the republican constitution by stating that "SR Slovenia is th e
state of the sovereign Slovenian nation and citizens of the S R
Slovenia ;" that "the social order of SR Slovenia is based o n
respect for the rights and freedoms of man and citizen ;" tha t
"social, collective and private property are equal ;" removing man y
standard phrases of communist jargon ; and by providing that "Al l
organizations and movements may freely participate in politica l
life," provided that they support "humane relations betwee n
peoples,
respect
for
the rights and basic freedoms of man ,
democracy and a higher quality of life, the principles of a lega l
order
[pravna drzava,
or
rechtsstaat],
the sovereignty of th e
Slovenian nation and the people of Slovenia and their equa l
position in the establishment of the joint interests of the nation s
and nationalities of Yugoslavia,"
[emphasis added], among other ,
things . While much of this amendment is liberal in implication ,
the phrases emphasized in the above quote could easily be used t o
stifle political participation by certain individuals or groups .
For example, it takes no stretch of the imagination to envision a
regime that defines "democracy" in its own unique way -- and the n
tries to suppress all those who define it differently . Perhap s
more likely, the provision that freedom of political participatio n
is afforded all those who support "the sovereignty of the Slovenia n
nation" could easily be used to ban anyone who wished to espous e
an all-Yugoslav position . Largely because of these potentia l
difficulties, this amendment was included in a group of amendment s
which came to be known as "controversial"
18
(sporni amandmani)
in
political discourse in the rest of Yugoslavia in the late summe r
and early fall of 1989 .
Another controversial amendment, new in the Proposed Text ,
was 41b, proclaiming the obligation of
federal
authorities t o
respect the languages of Yugoslavia and to use Slovenian i n
Slovenia . On the one hand, this provision was congruent with art .
246 of the federal constitution, guaranteeing the equality of th e
languages of the Yugoslav peoples ; but the Slovenian amendment als o
went on to provide that "acts [by federal agencies] in violatio n
of this provision lack legal effect" -- a provision apparentl y
attempting to allow the
republican
constitution to invalidat e
federal acts, an assertion of republican power not to be found i n
the federal constitution . A further assertion of republica n
sovereignty to the exclusion of the federation was a new amendmen t
48, proclaiming, first, that "when
. . . organs of the federatio n
violate or infringe on the rights of the SR Slovenia, [th e
Republic's] organs must undertake measures to defend the republic' s
position and tights" (amendment 48a) ; and second, that only th e
Republican authorities may declare a state of emergency i n
Slovenia .
Another controversial amendment, liberal on its face but not ,
perhaps, in implication, granted the Italian and Hungarian minorit y
populations in Slovenia, as "autochthonous minorities," the righ t
to use their own language and other cultural right s
(amendment 43c) . This amendment seems progressive, but potentia l
difficulties arise because of the addition of the qualifying ter m
19
"autochthonous," which is new to the constitutional discourse .
By specifying that only these "autochthonous minorities" possesse d
cultural rights, the amendment potentially precludes such right s
for the largest minority populations in Slovenia, the othe r
Yugoslav nationalities, in violation of articles 154, 246 and 24 7
of the federal constitution . "
Another controversial amendment provided that when th e
Republic of Slovenia was called upon to fulfill financia l
obligations in connection with the functioning of the federation ,
the Slovenian Assembly would respect "the material capabilities o f
the Republic and the requirements of its development" (Propose d
Text, Amend . 56) . The implication of this provision was that th e
republic would decide for itself which federal functions it woul d
support, even when those functions had been properly authorized o r
mandated at the federal level .
The major theme unifying these additions to the Draf t
amendments was Slovenian sovereignty, as stated in the addition s
to the Basic Principles of the Slovenian Constitution provided b y
proposed amendment 8a . Yet the provisions of many of thes e
amendments would be open to challenge under article 206 of the
Federal constitution, as the Draft had recognized . The respons e
of political figures in Slovenia to this potential weakness of th e
amendments was to argue for a new interpretation of the basics o f
the federal constitutional structure, which would in effec t
transform what even they had seen in spring, 1989 as a federatio n
into a confederacy .
20
The New Doctrine of Republican Supremac y
In part, the attempted transformation of the federal structur e
exploited ambiguities in the federal constitution itself in orde r
to deny any jurisdiction to federal judicial or governmenta l
institutions for the determination of the validity of republica n
constitutions in terms of the federal constitution .
At the sam e
time, a new theory of the basic structure of the federation wa s
used to color interpretations of all provisions, including thos e
not previously seen as ambiguous, and not previously seen a s
fostering confederation .
Ambiguities in the text of the 1974 Constitution were in an y
event not hard to find . That instrument, long criticized for it s
length, complexity and prolixity, proved on close examination t o
be even more confusing than had previously been thought . Fo r
present purposes, the complications surrounding article 206 ma y
best serve as an example . At first glance, there seems to b e
little ambiguity : the article states clearly that "Republican an d
provincial constitutions may not be contrary to the SFR Y
Constitution ." The difficulties come when the mechanisms fo r
implementing this unambiguous provision are examined . First, wh o
decides whether, in fact, a republican/provincial constitution i s
contrary to the SFRY Constitution? Article 378 of the Federa l
Constitution provides what seems to be an answer : "Th e
Constitutional Court of Yugoslavia gives its opinion to th e
Assembly of the SFRY as to whether a republican or provincia l
constitution is contrary to the Constitution of the SFRY . "
21
Bu t
this provision is more ambiguous than it may seem, particularly i n
English translation, because the word "opinion"
(mislenje) is used ,
in connection with the Constitutional Court, only in this Articl e
and only regarding this issue . In other kinds of cases, the cour t
is authorized to give "decisions" (odluke) and "rulings" (resenja )
by majority vote of all of its members (Article 391), bu t
"opinions" and the means of arriving at them are never mentioned .
It is possible to solve this problem by arguing that since th e
Court is only authorized to make decisions and rulings, th e
"opinion" must take one of those forms ; and since a "ruling" is no t
a final order and a "decision" is, the "opinion" must take the for m
of a "decision" and must reflect, at a minimum, the votes of
a
majority of the Court ." Even so, however, the force of the Court' s
"opinion" remains unclear . While a "decision" by the court is ,
binding and enforceable (Article 394), the "opinion" of the Cour t
on a question of conflicting federal and republican/provincia l
constitutions is reported to the Federal Assembly, which is onl y
obligated to "discuss opinions and proposals of the constitutiona l
Court of Yugoslavia concerning the protection of constitutionalit y
and legality by this Court" (art . 285, § 11) .
Despite the ambiguity in
the text of the constitution ,
however, this problem is resolvable if the necessary logic of
a
federal system is taken into consideration . That is, by the logi c
of a federal system, the provisions of the federal constitutio n
must override conflicting provisions in the constitutions o f
constituent units of the federation . If this rule does not hold ,
22
then the federal constitution becomes, literally, meaningless ,
since its provisions can be overridden, and hence effectivel y
repealed, by any of the constituent parts of the federation .
Further, if the federal constitution is not superior, it can i n
effect be amended by unilateral action of the federal constituents ,
in disregard of the express provisions contained within it for it s
amendment . This logic was set out in its essentials in the famou s
American constitutional decision in
Marbury v . - Madison
(1803),
a
fact that was pointed out in the Yugoslav debate in an article i n
Borba (Lilic and Hajden 1989), although not, apparently, with muc h
impact . The argument cannot be inverted to support republica n
supremacy on the grounds that otherwise the republican constitutio n
is meaningless, because the federal constitution is bound ,
restricted in its applicability by its own terms, in ways that th e
republican constitutions are not ; which means that any stricture s
that the federal constitution imposes on those of the republics ar e
narrowly defined, while the reverse would not be true .
Despite this logic, however, and the earlier assumption o f
federal supremacy, there seemed general acceptance in 1989-90 o f
the position that the Yugoslav system does
not
involve th e
supremacy of the federation, because the constitutional structur e
does not specify how to resolve a conflict between the provision s
of the federal constitution and those of a federal unit . This wa s
an opinion shared not only by Slovenes, but also by Dr . Miodra g
Jovicic, who appears to have been the constitutional theorist mos t
23
in favor in official circles in Serbia, judging from the number an d
prominence of his appearances in NIN :
The entire text of the proposed amendments to th e
Constitution of the SR Slovenia teems with provision s
contrary to the Constitution of the SFRY . If suc h
amendments were to be passed, the Constitutional Cour t
of Yugoslavia would have to work for years to determin e
the instances of contradiction between the Slovenia n
Constitution and the federal one . But that would be a
fruitless task because, by the provisions of the existin g
,[federal] constitution, and unlike the situation in th e
rest of the world, there is no establishment of
a
hierarchical relationship between the republican an d
federal constitutions, with the requirement that in cas e
of inconsistency the provisions of the republica n
constitution must be brought into alignment with th e
federal constitution (Jovicic 1989 :18) .
Despite the professional prominence of Dr . Jovicic, however ,
this seems an implausible construction of the federal constitution ,
both because of the necessary logic of a federation and even i n
view of the express wording of that document . Article 20 6
specifies that republican and provincial constitutions "may not b e
contrary to"
(ne mogu biti u suprotnosti)
federal constitution
the provisions of th e
(S 1), while "statutes and other regulation s
. must be in conformity
federal constitution (§ 2) .
(moraju biti u saglasnosti)"
with th e
As Professor Djordjevic noted in hi s
24
constitutional law text, the difference in wording was no t
accidental ; and while statutes are put in a hierarchically inferio r
position by the requirement of conformity, the expressio n
non-contradiction only expresses the principle of application o f
otherwise equal acts (Djordjevic 1986 :356), or paramountcy . Th e
question is one of validity : if a provision of a republica n
constitution is not in conformity with the federal constitution ,
the republican provision is not valid, and hence has no lega l
effect . The republic may then either let the question lapse, o r
try to reframe the impugned provision so that it passe s
constitutional muster, but may choose for itself which course t o
follow . American constitutional history, for example, is littere d
with state acts that are plainly unconstitutional yet continue t o
exist in the lawbooks, unenforceable . This type of primacy in ,
application reflects hierarchy in the sense of "the principle b y
which the elements of a whole are ranked in relation to the whole "
(Dumont 1980 :66)
(the whole being, here, the constitutional orde r
of Yugoslavia), but removes the implication of command that i s
often implied by the term "hierarchy," and which was implied b y
Djordjevic .
The view that the republican constitution need not be
subordinated to the federal one is logical only if one assumes tha t
the sovereignty of a component of the Yugoslav federation i s
complete . This latter position was, in fact, the one taken b y
politicians and commentators in Slovenia, particularly at the tim e
of the controversy surrounding the passage of the "dispute d
25
amendments" in September, 1989 . In the two weeks prior to th e
scheduled passage of the amendments in the Slovenian Assembly o n
September 27, federal authorities and bodies warned that severa l
amendments were contrary to the federal constitution and thu s
contrary to article 206, and requested that the Slovenian assembl y
postpone and passage of the disputed amendments . Thus th e
Presidency of the SFRY, on 15 September, warned of "grievou s
negative consequences which would follow for the constitutiona l
order of the country, relations within the federation, and fo r
respect for the principles of constitutionality and legality" i f
the disputed amendments were passed, and expressed confidence tha t
the Slovenian Assembly would not pass them ; and on September 26 ,
the Presidency of the SFRY asked the Slovenian Assembly to postpon e
the amendments, accompanying this request with the warning that "i n
case of a collision between the constitutional provisions of an y
member of our federation and the Constitution of the SFRY, [th e
Presidency] will ensure the application of the provisions of th e
Constitution of the SFRY on the entire territory of Yugoslavia ."
The Presidency of the League of Communists of Yugoslavia als o
warned of negative consequences . Similarly, the Federal Executiv e
Council, on September 16, pointed out the provisions of th e
Slovenian amendments that were potentially in conflict with th e
federal constitution, emphasized that in case of a constitutiona l
conflict, the federal constitution would be applied, and asked fo r
reconsideration of the amendments .
26
The Slovenian Presidency rejected these messages o n
26 September, saying that such " pressur e " on it was " unacceptabl e
constitutionally and politically ." On 27 September, the Slovenia n
Assembly passed the entire set of amendments, with minimal changes .
In regard to the question of conflict with the federa l
constitution, and the problem of that document's article 206, th e
position enunciated by virtually all Slovenian political actors wa s
that expressed by Miran Potrc, President of the Slovenian Assembl y
and its Constitutional Commission, at the start of the session tha t
passed the amendments : that only the Slovenian Assembly wa s
entitled to enact amendments to the republican constitution, an d
that
by the Constitution of the SFRY, not one federal orga n
has the authority to participate with its advice in th e
procedure for amending the republican constitution . . . .
It is only when the constitution has been adopted tha t
the Constitutional Court has the authority to give it s
opinion on the question of whether the republica n
constitution is contrary to the Constitution of the SFR Y
or not . That opinion does not have the effect of
a
decision of the Constitutional Court on the basis o f
which the provisions of the republican constitution woul d
cease to be valid . . . . Neither does the Federal Assembl y
have the authority to confirm that a republica n
constitution is contrary to the federal constitution .
The Federal Council only discusses the opinion of th e
27
constitutional Court and decides its [i .e ., the Federa l
Council's] political opinion .
(Borba,
28 September ,
1989 :1 )
The Slovenian position thus enunciated took off from a n
unquestionable truth -- that only the Slovenian Assembly could pas s
amendments to the republic's constitution -- proceeded to a non
sequitur
-- that no one other than the Slovenian Assembly coul d
voice an opinion on proposed republican constitutiona l
amendments -- and then to an interpretation of the federa l
constitution that is not at all impossible but is also not at al l
the only possible interpretation of the power and authority of th e
Constitutional Court and the Federal Executive Council on this typ e
of issue . It is, however, an interpretation that vitiates th e
ability of the federal constitution to bind republica n
constitutions, since it would leave the responsibility fo r
assessing the constitutionality of a republican constitutiona l
provision with the same people who enacted that provision, wh o
would then be perfectly free to ignore the federal constitution b y
the simple expedient of denying that they were doing so .
By
taking this position, the Slovenian politicians sought to overtur n
the original assumption of federal constitutional supremacy b y
making the federal constitution non-binding on the republics .
28
Response from the Center : The Constitutional Court of Yugoslavi a
Following the passage of the Slovenian amendments, th e
Constitutional Court of Yugoslavia, the only body authorized b y
the constitution of the SFRY to give an opinion on whether th e
republican constitution was contrary to the federal one, was calle d
into action . On September 28, the Federal Council, which is on e
of the bodies authorized to initiate proceedings in th e
Constitutional Court of the SFRY by article 38 - 7 of the federa l
constitution, first passed a motion to begin proceedings befor e
the constitutional Court of Yugoslavia to assess th e
constitutionality of the Slovenian amendments ; and then, followin g
what the newspapers called a "bitter debate," broadened the actio n
to include the determination of the constitutionality of all of th e
amendments to all of the constitutions in Yugoslavia
29 Sept .
1989 :1) .
(Borba, ,
The Court, for its part, began the procedure s
for examining the constitutionality of the various amendments o n
October 4, 1989 (Borba, 5 October 1989 :5) .
The novelty of th e
situation was reflected in the newspaper accounts of the Court' s
actions .
Borba spelled out in some detail the Court's procedures ,
which it had not done in reporting on the Court's activities in th e
past . Further,
Borba
felt the need to correct some publi c
misconceptions concerning the Court's authority to determine th e
constitutional question, pointing out the misconception that th e
Court was a "power" that could resolve the constitutional conflict ,
saying that it was only clear, at that moment, that the court coul d
give its "opinion" on the matter to the Federal Assembly .
29
On the
same page, however, the president of the Court was quoted as sayin g
that "The Constitutional Court of Yugoslavia is the only authorized
organ which can authoritatively determine whether the constitutio n
of a republic or province is contrary to the Constitution of th e
SFRY"
(Borba, 5 October 1989 :5) .
The court's procedure for determining its opinion was the n
announced, and explained as being its regular procedure . First ,
the task of executing a preliminary assessment of the situatio n
for each constitution was assigned, according to a pre-establishe d
order ; to individual judges . That the order was pre-established ,
standard operating procedure, was stressed, because a Serbian judg e
was given the task of assessing the Slovenian amendments, an d
Slovenia and Serbia had been engaged in increasingly bitte r
political conflict since the previous February . The procedure wa s ,
then explained by Borba, on the basis of "unofficial sources" a s
most likely to be one in which the judges would hear from th e
officials of the various republics/provinces behind closed doors ,
and would not venture any comments until their official opinion wa s
determined and announced ; and that this procedure would take a t
least one month .
As it happened, however, the court chose instead to procee d
by scheduling public arguments
(javna rasprava)
on each of th e
constitutions, to be informed initially by the preliminary opinio n
of the judge who had been charged with examining the particula r
constitution in question . Accordingly, the court scheduled thes e
arguments, notified each republican/provincial assembly, an d
30
invited participation by each of them .
The Slovenian amendment s
were scheduled first, for discussion on December 5, 1989 . O n
November 21, however, the Presidency of the Slovenian Assembl y
announced that there would not be any Slovenian participation i n
the discussion scheduled for December 5, on the grounds that th e
Constitutional Court's actions were themselves unconstitutional .
The Slovenian argument was as follows : that the Constitution onl y
empowers the Constitutional Court to give its opinion on th e
question, but that the Federal Assembly had asked the Court for
a
judgement on that question ; further, that the Federal Council coul d
only propose the consideration of acts that had been passed i n
final form, and that the proposal must list the particular section s
questioned, providing the name and page of the official documen t
in which the material was published, but that the Federal Counci l
had acted on drafts of the amendments rather than on the officia l
published versions
(Borba,
22 November 1989 :3) .
Despite this announcement from the Slovenian Assembly, th e
Constitutional Court met as scheduled to consider the Slovenia n
amendments on December 5 . At this meeting, however, yet anothe r
complication arose, in that no representative of the Federa l
Council came to the public discussion . Since the Federal Counci l
had been the initiator of the review process, and the Slovenes ,
true to their word, had also not come, the Court was faced with th e
prospect of holding a public discussion without the participatio n
of either the initiating party or the other interested party to th e
dispute . After some discussion and examination of its own rule s
31
of procedure, the Court decided to proceed . The judge who had bee n
charged with examining the Slovenian amendments reported hi s
findings : that some of the amendments were "identical" to th e
corresponding sections of the federal constitution, that some wer e
similar, and that a third group raised novel questions in Yugosla v
constitutional law, concerning the structure of the constitutiona l
system
(Borba,
6 December 1989 :4) .
The investigating judge did not view all of the variances fro m
the provisions of the federal constitution as "contrary" to th e
latter . Some, he said, actually advanced the societal concept s
that were. introduced and developed in the 1988 amendments to th e
federal constitution . Others, however, did cause concern . H e
mentioned specifically the question of whether a republic coul d
secede, thus changing the borders of the country unilaterally, o r
whether the agreement of all republics and provinces was required ;
the question of whether a republic could limit the ability of th e
federal authorities to declare
a
state of emergency in th e
republic ; and whether a republic could mandate that th e
representative from that republic in the Presidency of the SFRY ac t
only in accordance with the specific instructions of that republic .
(Borba,
6 December 1989 :4) .
Having announced this concern, an d
in the absence of presentations by representatives from either th e
Federal Assembly or the republic, the public discussion was closed .
Over the next several weeks, the Court held similar publi c
discussions about the amendments to all of the constitutions of th e
republics and autonomous provinces . The Federal Assembly did no t
32
send a representative to any of these discussions, though th e
republics and provinces were represented at them .
In its final analysis, the Court decided that th e
constitutions of all of the republics and provinces, except tha t
of Montenegro, contained provisions contrary to the federa l
constitution (Borba, 9 February 1990 :9) . Most of the controverte d
provisions were relatively technical and not openly politicall y
dangerous, at least at that moment ; thus the mos t - common flaws wer e
provisions in the constitutions of Croatia, Bosnia & Herzegivina ,
Macedonia, Slovenia and Vojvodina that implied or stated exclusiv e
republican/provincial control of "large systems" (the power grid ,
rail system and postal service) ; provisions in the constitution s
of Serbia and the provinces requiring the use of Cyrillic ; and a
provision in the Serbian constitution limiting private land ,
holdings .
The Court had more to say about the Slovenian amendments . On
the crucial question of secession, the Constitutional Court o f
Yugoslavia came down against unilateral decisions on that topic .
While it found that the republics do have the right to secede, th e
arrangements and procedures for exercising that right were foun d
to be the concern of the federal constitution . Since tha t
document says nothing on the subject, the provisions of th e
Slovenian constitution giving itself the right to make its ow n
arrangements
and
unconstitutional .
for
procedures
secession,
were
hel d
Further, recognizing the validity of th e
principle that the external boundaries of Yugoslavia can only b e
33
changed with the consent of all of the republics, the Court hel d
that the question of secession can only be decided jointly, wit h
the agreement of all of the republics .
The court also found against the republic in regard to th e
attempt to limit the federal government's power to declare a stat e
of emergency in Slovenia . The court reasoned that the Presidenc y
of Yugoslavia would have both the right and the obligation t o
declare a state of emergency in Slovenia if some general dange r
threatened the existence or constitutional order of that republic ,
on the grounds that such a condition would also threaten the whol e
of the country . It also ruled unconstitutional the provision o f
the same amendment that provided for the automatic recall of an y
member of the federal presidency from Slovenia who voted for th e
imposition of a state of emergency in the republic without th e
consent of the republican assembly, on the grounds that suc h
officials were bound only by the federal constitution and laws .
Similarly, the Court also ruled against a provision that th e
republican assembly could issue binding instructions to th e
Slovenian members of the federal assembly . Thus the Constitutiona l
Court of Yugoslavia ruled against the Republic of Slovenia i n
regard to some of the most important elements of the dispute d
amendments to the republican constitution .
The decision of the Constitutional Court was reported to th e
Federal Assembly, which let the matter lie for two months . On
27 March 1990, however, the Federal Assembly passed, by majorit y
vote, a resolution mandating that the provisions of republican an d
34
provincial constitutions that had been determined by the Court t o
be contrary to the federal constitution must be brought int o
agreement with the latter document within three months .
Concurrently, the Federal Assembly also passed resolution s
establishing that it was itself responsible for ensuring th e
consistent application of the federal constitution and federa l
laws, and that the Federal Executive Council was responsible fo r
ensuring the consistent administration of these federal instrument s
(Borba,
28 March 1990 :1) . These actions were opposed b y
representatives of Slovenia, who asserted that the federation di d
not have the power to so act .
A CONSTITUTIONAL STALEMATE ?
AClash of Principle s
Stripped to its essentials, the decision of the Constitutiona l
court of
Yugoslavia
upholds the logic of federalism over th e
confederal stance taken by the Republic of Slovenia . In regar d
to the current constitutional situation, the position i s
stalemated : the Constitutional Court has rejected Slovenia's claim s
to confederation, but that republic rejects the Court' s
jurisdiction to decide the question, using reasoning that als o
precludes action by any other federal institution . Such
a
situation may continue indefinitely, but could erupt into a full fledged confrontation over virtually any issue on which neithe r
side feels able to compromise .
35
Continued
Movements
on
the
Constitutional
Chessboard ,
Winter 1989-9 0
It is presumably this danger of falling into conflict an d
chaos that has induced continued movements in the constitutiona l
arena . In late 1989 and early 1990, virtually all politica l
players in Yugoslavia called for revisions of the constitutiona l
structure, and no less than four concrete proposals fo r
constitutional revisions were put forth ." First off the mark wa s
the Federal Executive Council, which put forth proposals fo r
constitutional amendments as part of a package of measure s
announced on December 18, 1989 (see Borba, 19, 20, 21 Dec . 1990) .
These proposed amendments were aimed at rationalizing the econom y
by removing the special status of "social property" and the limit s
on land holdings .
But the proposed amendments would also have ,
strengthened the power of the federal government to enact an d
enforce legislation . For this reason, the Slovenian assembl y
rejected the proposed amendments even before the end of December ,
as an attempt to effect changes in the "basic structure of th e
federation" and to increase the authority of the centra l
government, specifically the Federal Executive Council
(Borba ,
29 Dec . 1989 :3) .
In the next several months, four proposals for changes in th e
Federal constitution were put into political play ."
On
January 21, 1990, the Presidency of the SFRY sent a proposal fo r
changes in the federal constitution to the Federal Chamber of th e
Federal Assembly
(Borba,
28 January 1990 :1) .
36
The Presidency' s
proposals, really a draft of a complete new constitution ,
maintained some of the language from the 1974 Constitution that ha d
been drawn upon by the Slovenes in fashioning their confedera l
reinterpretation of that document : for example, a reference in th e
basic principles to the right of the nations of Yugoslavia t o
"self-determination, including the right to secession"
(Borba ,
28 January 1990 :2) . Further recognition of the Slovenian positio n
on this basic point was provided in a proposal that the ne w
constitution "work out precisely the procedures for an eventua l
secession" (Borba, 28 January 1990 :8) . However, the proposal als o
recognized a federal competence : "The Federation . . . has full lega l
and political capacity within its jurisdiction as defined by th e
Constitution of the SFRY, and likewise the rights and obligations ,
which means that it possesses the legislative, administrative an d
judicial authority with which to assure the effective and efficient
establishment of these rights and obligations"
1990 :8) .
(Borba, 28 Januar y
And the areas of federal competence would be wide : th e
protection of human rights and freedoms, national defense, th e
basics of the economic and political systems, assuring a unifie d
Yugoslav market and equal economic competitive atmospher e
throughout the country, the credit and monetary systems, and othe r
fields (Borba, 28 January 1990 :8) .
Changes in the judicial syste m
to assure the establishment of these obligations were also propose d
(Borba, 28 January 1990 :4) .
Specifically, the proposal recognize d
the need "to make more precise the character and legal effect o f
an assessment by the Constitutional Court of Yugoslavia abou t
37
contradictions between republican or provincial constitutions an d
the constitution of the SFRY . "
It was because of these provisions for clarifying an d
increasing federal power that the Presidency's proposal wa s
unacceptable to Slovenia . The Presidency of that republic issue d
its own propositions for new relations within the federation almos t
simultaneously with the constitutional proposals of the federa l
Presidency . The Slovenian proposals were located at the confedera l
end of the spectrum, proclaiming that the jurisdiction of th e
federation should be limited to only "foreign affairs, defense, th e
joint basis of the economic and political systems, the unifie d
market, and the financing of jointly agreed functions ." All other
matters would remain within the sole jurisdiction of the republic s
and provinces (Borba, 28 January 1990 :11) . Further, the federation '
would have little authority to fulfill even the functions assigne d
to it . An indicator of this minimal status for the federation wa s
a provision that the establishment of the economic functions of th e
federation must be based on the position that "the federation i s
not a legal subject with its own economic interest, but th e
republics are the authentic and sovereign possessors of economi c
interests in their own development and for joint development a s
defined by agreements"
(Borba,
28 January 1990 :11) . Anothe r
indicator of the weakness of the federation in this scheme was th e
provision that even when acting within the areas of its competence ,
the Federal Assembly may be required to act only with the consen t
38
of all components of the federation if demanded to do so by an y
republic (Borba,
28 January 1990 :11) .
The FEC had not given up its own proposals, however . At it s
meeting of February 2, 1990, the FEC decided to submit to th e
republics and provinces a revised proposal for the introduction o f
changes to the federal constitution
(Delegatski Vjesnik,
8 Feb .
1990 :2) . The introduction to this proposal recognized th e
contradictory nature of power in creating a democratic state :
Regarding the changing role of state organs, it is abov e
all necessary, on the one hand, to reduce their authorit y
in
accordance with accomplishing de-statificatio n
[deetatizacija]
in the nation's economy, while on th e
other hand, establishing the authority necessary fo r
guaranteeing and protecting the mechanisms of the marke t
economy and the stability of commerce .
The solution to this problem was sought in the establishmen t
of a system that would : operate a market economy, free of th e
intrusions of the former self-management institutions, which woul d
be removed ; guarantee democratic politics through free, secre t
elections without recognition of any special role for any party ;
affirm the independence of the judiciary and remove th e
self-management courts of the old system ; and finally, which woul d
grant the federal authorities authority sufficient to guarante e
these basic provisions . On this last point, the proposal wa s
clear : in order to
39
establish the uniform and efficient application o f
federal laws, and to strengthen the principles o f
constitutionality and legality and legal security, it i s
necessary to simplify the very complicated mechanism fo r
assuring the application of federal laws, so that th e
Federal Executive Council and other federal organ s
receive the authority with which to ensure the efficien t
and uniform administration of the Constitution of th e
SFRY, federal laws and other federal regulations over th e
entire territory of the SFRY .
Following this announcement of its aims in amending th e
constitution, the FEC submitted a draft of proposed amendments fo r
consideration by the parliaments of the several republics an d
provinces .
Of the four drafts of constitutional amendments in circulatio n
after mid-February 1990, the two most important ones were plainl y
those of the Presidency and of the FEC . The Slovenian proposal s
were only concerned with relations within the federation, and see m
to have served primarily as a warning of the depth of Slovenia n
resistance to federal power, since no one could ever expect
a
polity structured under those terms to be able to do anything o f
substance, or even to exist for very long . The proposal fro m
Bosnia and Hercegovina, which was apparently not published in th e
general news media, became subordinated to the proposal by the FEC .
Perhaps because of its seemingly more limited changes, a s
further amendments to the existing structure, the FEC proposa l
40
gathered support while the Presidency ' s document, which propose d
an essentially new constitutional structure, did not . February sa w
a protracted debate between the FEC, supported by Serbia, whic h
tried to insist that its amendments be accepted as a package, an d
Slovenia, which demanded that they be considered individually ;
Slovenia won . By the end of February most republics, and bot h
provinces, had accepted the FEC proposals in principle though no t
the details, and Slovenia explicitly rejected the FEC's suggestion s
for provisions regarding relations within the Federation
(Borb a
8 March 1990 :1) . At the beginning of March, the FEC announced
that the Federal Assembly was entitled to draft proposed ne w
amendments to the constitution, because all of the republics an d
provinces had agreed to the general proposition that there shoul d
be new amendments, even though some of the specific proposals wer e
explicitly rejected (see
Borba
9
March
1990 :1 ;
and 14 Marc h
1990 :1) .
Drafting Amendments, March-May 199 0
The Constitutional Committee of the Federal Assembly, whic h
had been charged with drafting the amendments, produced a workin g
version of them in short order ; it was published in
Borba on
4 April 1990, and scheduled for discussion in the Parliament o n
12 April . At that discussion, the Committee explained that it ha d
drawn up the working version in just four days, beginning with th e
FEC's proposals and the comments they had generated, the n
41
distributing the first version and doing a second one on the basi s
of comments received from the FEC, the Committee on Human Right s
of the federal parliament, the parliaments of the republics an d
provinces, and other political actors
(Borba,
13 April 1990 :3) .
The Committee explained its goals . The first aim was to chang e
the identity of the "basic subject" of the constitutional orde r
from the "work collective" of the 1974 constitution, in whic h
individuals were included only as members of the group, to th e
individual citizen . Further, this citizen was to be invested wit h
basic economic and democratic political rights : a right to privacy ,
the right to be protected from torture and "inhuman conduct," th e
right to free political organization and action, "and so forth "
(Borba, 13 April 1990 :3) . The Committee had not worried overl y
much as to whether particular provisions could be classified a s
socialist or capitalist, being more concerned to establish a syste m
based on "considerations of the modern world, civilized values an d
limitations" (ibid .) . Thus the amendments would make th e
(in)famous social property of the 1974 constitution lose it s
privileged position in the economic sphere, as would the idea o f
self-management itself,
although the latter might remain as a n
option for individual work organizations .
In regard to the touchy topic of relations within th e
federation, the Committee said that the working draft created som e
new economic functions, but did not widen the federation's existin g
authority . Indeed, the Committee's main spokesman that day ,
Dr . Mijat Sukovic, said that the new federal structure would no t
42
be a hierarchical one, because "every republic at every moment ca n
independently remove the basis for the exercise of federa l
authority on its territory
. .
. [A republic] may [do this] as th e
sole guarantor of the execution of federal laws, which it has i n
any event voted for" (ibid .) . On the other hand, the workin g
draft itself, in a proposed Amendment 68, seemed to give the FE C
the authority to execute federal statutes and regulations b y
itself, if the "authorized organs" failed to do so after receivin g
a warning and order to execute them . Similarly, the same amendmen t
would give the FEC the power to prevent the execution of an y
regulation or other legal act that would "damage the unifie d
Yugoslav market" or which would infringe on rights guaranteed b y
the constitution of the SFRY, or which would damage th e
constitutional order (Borba, 4 April 1990 :5) . A further potentia l
expansion of federal authority could be found in amendment 64 :
"Revenues for the federation consist of customs duties, taxes an d
other sources of revenue established by federal statute"
(emphasi s
added), a provision that could be seen as granting an unlimite d
power of taxation to the federation . On the other hand, th e
problem of republican constitutional provisions contrary to thos e
of the federal constitution remained untouched . Proposed amendmen t
69, however, did tighten some of the language in regard to th e
jurisdiction of the constitutional Court of Yugoslavia, which woul d
now "determine" whether statutes and other legal acts were i n
conformity with the federal constitution or contrary to federa l
statutes . The original language of article 375 had said only tha t
43
the Court would "assess" constitutionality in these circumstances ,
and a decision is enforceable while an assessment may not be .
Virtually none of the proposed amendments was accepted by al l
parties, even as parts of a working draft . In an introductory not e
to its publication of the text,
Borba
noted that it wa s
"interesting" that the working draft contained twenty-fou r
amendments -- and twenty-seven alternative proposals . In fact ,
virtually the only amendments to receive universal support were th e
normative ones, ensuring human rights, political freedoms and th e
equality of all forms of property .
Nor was the Constitutional Committee united in its views o f
either its task or of the future of Yugoslavia . Sukovic propose d
that the amendments could be accepted in several phases, beginnin g
with those on which unanimity had been reached, then proceeding t o
those that were necessary for solutions of the economic crisis ,
and finally dealing with the structure of the federation . Yet even
this approach could not attain consensus .
A Slovenian delegat e
announced that his republic would not consider any of th e
amendments on which alternative drafts existed until after th e
scheduled multi-party elections and the formation of a ne w
republican assembly, a position also taken by Croatia . Further ,
the Slovenian delegate said that Slovenia would not in any even t
accept any amendments that altered the existing structure o f
relations within the federation, because the Slovenian assembly ha d
decided on March 8 that that republic would only accept a futur e
confederation or at least a confederal relationship for Slovenia .
44
On the other hand, representatives from Serbia demanded that th e
new federal structure be based on the principle of "one man, on e
vote," a position that would clearly benefit Serbia and Serb s
outside of Serbia at the expense of the smaller nationalities .
Thus the working draft went back to the Committee, but it s
publication and the parliamentary debate had facilitated discussio n
by both the public and other political forces .
A revised draft of proposed amendments was reported out of th e
Committee on 15 May 1990
(Borba,
16 May 1990 :3) . The revise d
version still contained twenty-four amendments, of which six ha d
the unanimous approval of the Committee, while the other eightee n
were proposed along with alternative variants of them . Eleven o f
these "alternatives," however, would simply maintain the statu s
quo, by not effecting any change . In the face of this manifes t
disagreement within the committee, Mijat
Sukovic
took pains to
point out that of all the disputed amendments, only tw o
(unspecified) had led to division on geographic (i .e ., republican )
principles, while the other alternative versions were simply th e
result of "the arduousness of the search for better solutions . "
Interestingly, Sukovic reported that . there had been no rea l
argument over the relations within the federation, and that th e
most important issues had concerned the retention of the concep t
of "social property" in the constitution .
The draft amendments themselves (published in
Borba, 21 Ma y
1990 :6) continued the deconstruction of the socialist self management edifice of 1974 . The first amendment in the new se t
45
(Amend . 49) would remove virtually all of the complex verbiage o f
the Introductory Part of the constitution, including the provision s
establishing the League of Communists of Yugoslavia as the
" prime
mover and guiding force of political activity ." Some reference s
to "socialist self-management society" would remain, but only a s
hortatory phrases ; and a proposed alternative to the amendmen t
would remove even those sections . The next amendment (50) woul d
remove the special status of social property, making all forms o f
property equal . Other amendments would : further simplify th e
social system by removing many of the categories of self-managemen t
institutions from the constitution ; guarantee human rights an d
social and political rights (i .e ., a right to privacy) ; remove th e
self-management courts (i .e ., the Courts of Associated Labor [se e
Hayden 1990]) and the "social attorney of self-management ;" and ,
remove the role of the Socialist Alliance in the selection of th e
federal presidency . These reforms were agreed to more or les s
without exception . On the other hand, amendments aimed at unifyin g
the Yugoslav market or at strengthening the position of the federa l
government were each accompanied by an "alternative" proposal : tha t
the particular amendment be eliminated! Amendments accompanied b y
such a nullifying option would : establish a unified tax system a s
the basis for the unified Yugoslav market ; give the National Ban k
of Yugoslavia a role in executing federal financial laws ; give th e
federation authority to execute federal laws pertaining t o
taxation ; grant authority to the FEC to execute federal laws, i f
the responsible republican authorities would not do so ; give th e
46
constitutional court clearer authority to "decide" whethe r
republican/provincial statutes were in accordance with the federa l
constitution ; and give the federal parliament authority t o
determine monetary and foreign currency policies for the entir e
federation .
Despite these considerable reservations on the amendment s
within the text itself, the Federal Assembly accepted the draf t
amendments from the committee, with no negative votes but with fou r
abstentions
(Borba,
17 May 1990 :1) . This vote set into motio n
what are supposed to be the next-to-final stages of the amendmen t
process : public discussion .
First, the draft amendments a s
accepted by the Federal Council were sent for comment to th e
assemblies of the various republics, which were obligated to giv e
their opinions on them by 18 June 1990 . Further, the Federa l
Council mandated that the constitutional committee of the Federa l
Parliament hold an "expert discussion" on all amendments for whic h
alternatives had been suggested . Citizens and other intereste d
parties were also invited to send comments directly to th e
Constitutional Committee . Finally, that Committee was charged wit h
presenting to the Federal Assembly, no more than fourteen day s
after the conclusion of the "public discussion," a report on tha t
discussion, along with a final revised text of amendments .
Despite the best efforts of the Constitutional Committee ,
however, and the long and vociferous debates over the amendments ,
the key problem remains the doctrine of republican supremac y
adopted by the Slovenes in November 1989, and since accepted b y
47
some other political actors . The nullifying alternative to an y
expression of federal authority in the amendments is proof of th e
continued influence of this doctrine . And as long as it exists ,
it is difficult to envision any effective substantive change to th e
federal constitution . Hence the constitutional stalemate .
AN UNSTABLE STALEMATE ?
Political Developments, Winter-Spring 199 0
There is a bitter irony in this constitutional impasse ,
because it cuts both ways : the economic reforms desired by, e .g . ,
Slovenia, will be meaningless if they cannot be enforced throughou t
the country, but the doctrine of republican supremacy preclude s
such enforcement .
Yet there are many reasons why all parties t o
the Yugoslav constitutional debate have reasons to be more or les s
satisfied with the status quo, in the short term . A stalemat e
avoids overt confrontation with its threat of military or othe r
physical sanction, and thus avoids the risk of unacceptable losses .
The stalemate can not last forever, however, for two reasons . One
is that the paralysis of central governmental institutions make s
more difficult coordination of economic activities between th e
various parts of the country, and increases the chance of conflic t
between republics over economic issues . But a more importan t
reason is that the asserted option of secession is likely to be
a
tempting theme for certain kinds of nationalistic politicians t o
use, a course of political action that can have a snowball effect .
And as claims to the "sovereign rights" of one or more republic s
48
increase, the chances also escalate for confrontation with th e
center, or for the central government to feel compelled to ste p
between quarrelling republics .
Political developments seem in fact to be increasing th e
likelihood of a confrontation between nationalist forces, eithe r
between republics or between a republic and the center . The firs t
event, both symptom of the depth of divisions and potential caus e
of a loss of institutional restraints on extremist nationa l
politics, was the collapse of the League of Communists o f
Yugoslavia with the indefinite suspension of its oddly (but aptly )
named "14th Extraordinary Congress" in January 1990 . While th e
Congress was finally resumed and completed in May (see
Borba ,
28 May 1990 :1), the dissolution of the federal League was manifes t
in that there were no formal representations from Slovenia, Croati a
or Macedonia (although individuals from the last two republics di d
attend) . At the institutional level, it had long seemed to mos t
analysts that the disciplined federal party was the only politica l
body that was positioned to hold together the loosely structure d
federation under the 1974 constitution
(see Rusinow 1978 : ch . 8) .
In its absence, the means of coordinating conflicting interest s
and perhaps "encouraging" compromise (if not outright pronouncin g
it) are few .
Yet it was clear to all that this removal of the potentiall y
coercive institutional structure was necessary if truly open an d
democratic political processes were to begin . Unfortunately, wha t
has resulted from the initial manifestations of these forces is no t
49
encouraging . In free elections in the republics of Slovenia an d
Croatia, the former communist parties of those republics have los t
power to nationalist forces, the multi-party Demos coalition i n
Slovenia, and the right-wing Croatian Democratic Union in Croatia .
Political leaders of both of these new governing forces have spoke n
openly about their desire to secede from Yugoslavia .
An d
nationalist sentiment is such that at the times that the election s
were held
in
both republics, virtually no political figure spok e
in favor of the continuation of a federal Yugoslavia . Instead, al l
espoused a confederal doctrine, basically the one developed durin g
the Slovenian amendment crisis : Yugoslavia as a "consensual union "
of totally sovereign republics, with the federation havin g
literally no authority .
At the same time, the FEC under the leadership of Ant e
Markovic has managed not only to function, but actually to brin g
about reforms of the country's economic systems, despite th e
dissolution of the League of Communists and the increasing nationa l
tensions . Polls indicate that Markovic is the most popula r
politician in all parts of the country, including those republic s
which have just elected strongly nationalistic parties (see Borba ,
21 May 1990 :7) . This result seems to reflect a kind of politica l
schizophrenia in Yugoslavia, with many people wanting to hav e
simultaneously a strong sovereign republic within a (con)federa l
Yugoslavia .
These recent political events in fact point out a centra l
problem of both political theory and political practice fo r
50
transforming East European socialist systems . As the FEC ha d
recognized (see above, p . 39), it is necessary for legitimat e
authority to guarantee and enforce market mechanisms, and this nee d
will be particularly pronounced in federal systems ." Yet there i s
a strong mistrust of centralized political authority in societie s
that have been under socialism for over forty years . Thi s
sentiment means that any proposal for the extension of authorit y
faces particularly severe problems of theoretical justification an d
political marketing . This problem was brought home to me in a
discussion of the American constitution's commerce clause with
a
Slovene political leader and intellectual in August 1989 .
A
practicing politician in what was still a one-party communis t
political system, he expressed the view that American-style federa l
trade mechanisms would not work in Yugoslavia, because th e
politicians would abuse the power thus afforded to them .
Confederation and Paralysi s
Despite the apparently widespread desire for confederation ,
however, the idea seems as unwieldy as anything in the politica l
repertoire of the old communist system . It is clear that th e
logic of a confederation, of fully sovereign republics, preclude s
the existence of any overarching government . If any republic ca n
choose to ignore federal laws, there is little reason for an y
republic to honor them . Thus even political or economic reform s
51
that are desired by republics such as Slovenia will be mad e
impossible .
The practical effect of the confederal school can be seen b y
looking at the events surrounding and producing the dissolution o f
the "14th Extraordinary Congress" of the League of Communists o f
Yugoslavia in January 1990 . Before the congress, the Slovenia n
delegation had demanded that the League cease to be a federatio n
and that it instead become a "league of leagues" : in effect,
a
loose confederation of independent Leagues of Communists for eac h
republic and autonomous province, none of which would be bound t o
each other or subject to any authority from the federal League .
During the Congress, the central body in fact did follow many o f
the suggestions made by the Slovenian League of Communists .
However, the failure of the federal body to follow
all
of the ,
Slovenian demands led to the walkout of the Slovenian delegates ,
since they refused to be bound to anything to which they had no t
agreed . Thus the intransigence of this one delegation, assertin g
a confederal principle that allowed absolutely no room fo r
authoritative action by a central power, led to paralysis of th e
confederal entity .
The current political paralysis is a constitutional failure ,
in that it is the result of the failure of the constitutiona l
system to provide mechanisms for achieving a resolution o f
important political issues . This failing became particularl y
pronounced after the Slovenian actions of 1989, because the effec t
of those actions was to begin to remove the Federal Constitutio n
52
as a source of authoritative norms and binding (albeit loosely )
standards for conduct by political forces in all parts o f
Yugoslavia .
Of course, it may be that the confederal position in regar d
to Yugoslavia is disingenuous ; that it is meant to prepare the wa y
for secession by those advancing it by creating a constitutiona l
stalemate . Certainly the idea of a confederal structure has bee n
used in the past as part of an attempt to destroy the Yugosla v
state, in fact, since the very beginning of that state (see Bana c
1984 :231-237) . In that case, the arguments used to promot e
confederation could be viewed as something of a red herring, an d
an analysis of it would be much ado about very little .
Yet the idea of confederation, or some other form o f
"consociational" union, has been promoted by political scientist s
as the way to solve the problems of multi-national states (see ,
e .g ., Lijphart 1977 and 1984), including, specifically, Yugoslavi a
(Banac 1990 :157) . Intentionally or not, this solution is rathe r
ironic, because the constitutional stalemate of Yugoslavia seem s
to be due to its adoption of many of the features of th e
consociational model .
The paralysis of the Yugosla v
(con)federation is due to the less than clear hierarchica l
relationship between the center and the constituents . But tha t
complicated structure is itself due to concerns for maintaining th e
Yugoslav nations as sovereign entities even as they are also mean t
to be in some way bound to each other . Or rather, connected bu t
not bound .
53
Is such paralysis of a confederal system inevitable? Th e
Yugoslav experience argues that it is . While theorists may argu e
that it is possible to create a "consensus" democratic system, tha t
"emphasizes consensus instead of opposition, that includes rathe r
than excludes, and that tries to maximize the extent of the rulin g
majority instead of being satisfied with a bare majority" (Lijphar t
1984 :23), the Yugoslav attempt to do just that does not augur wel l
for the model .
Confederation and Human Rights for Minoritie s
The principle of confederation raises yet another problem i n
regard to Europe, and particularly Yugoslavia : it is ultimatel y
anti-democratic . When all units are equal in voting power despit e
disparities in population size, the more populous units are subjec t
to the rule of the less populous . This situation is different i n
kind from the philosophical problems raised by devices to chec k
majority rule in regard to certain kinds of issues (e .g ., throug h
"affirmative action," or the over-representation of certain group s
in some electoral bodies), since such mechanisms are expressl y
conceived as exceptions to the general principle of majority rule .
In contrast, confederation negates majority rule .
The Slovenian response to this problem has been to defin e
democracy as a matter of majority rule in single-nation states ,
and consensus in multi-nation states . The Slovenian Presidency' s
54
Proposal on the Federation and Relations within the Federatio n
makes this position clear :
The principle of majority decision in single-nation
communities is the democratic way of decision making .
However, this is not valid for decision-making in multi national communities, particularly in multinationa l
federal communities . The modern development of democrac y
demands the consideration of nationality and th e
protection and assurance of the minorities throug h
inclusion of the principle of agreement of the member s
in decision making in the Federation .
This position, however, would effectively preclude the existenc e
of multi-national states, because of the requirement of unanimit y
and the threat of secession . As Namier said in regard to th e
events of 1848, national "[s]elf-determination
.
. contest s
frontiers, negates the existing State and its inner development ,
and by civil and international strife is apt to stultif y
constitutional growth" (Namier 1944 :26-27) . Yet much of the worl d
consists of just such mixed polities, and multi-national states ar e
inevitable unless we wish to contemplate, and condone, th e
homogenization of regions that have never before been homogenous ,
either through the extermination or expulsion of large numbers o f
members of minority groups from areas where their people have live d
for generations . That the history of 20th century Europe has bee n
in part a history of such homogenization is hardly promising .
55
The principle of confederation of nationality-defined state s
is troubling for another reason : it seems likely to foste r
majoritarian policies that are based on the active oppression o f
minorities . One of the least savory aspects of democratic politic s
is a tendency to appeal to national majorities by scapegoatin g
minorities for either economic ills or some asserted "degradation "
of the dominant culture . This strategy was not only the on e
pursued by Hitler ; it has been seen more recently in Sri Lanka ,
where Sinhalese electoral majorities have been based since th e
1950s on systematic discrimination against Tamils (see Tambia h
1986 ; Tiruchelvam & Coomaraswamy 1987), and Quebec, where one o f
the first acts of the province under the repatriated constitutio n
was to pass laws discriminating against the minority English speaking population, to say nothing of the American south (and som e
other parts of America) from Reconstruction through the 1960s .
The principle of confederation in nationality-defined states abet s
this tendency because of its insistence on the sovereignty of th e
national group . In the absence of some overarching power, loca l
politics are unlikely to lead to inclusion of minorities . In thi s
context, Americans might remember that segregation was ended onl y
by the extension of federal power into recalcitrant states, an d
recall the utilization of the National Guard by President s
Eisenhower and Kennedy .
In Yugoslavia, some new political forces and figures i n
Slovenia, Croatia and Serbia are irredentist and hostile t o
minorities in their respective republics . The first two republic s
56
already have proclaimed their sovereignty ; significantly, Serbi a
seems to be following the same line . Thus a member of the
presidency of Serbia, when questioned about the provisions of a
draft of a new constitution of the republic which would sharpl y
reduce the rights of the largest minorities, said "The federa l
constitution exists only on paper .
If the Slovenes can do i t
[ignore the federal constitution], so can we"
[interview with Mihalj Kertes]) .
(Borba, 16 May 1990 : 6
In other words, if we ar e
sovereign, we can oppress whomever we please .
FUTURE PROSPECTS : YUGOSLAVIA AND "EUROPE "
In 1988, a joke in Yugoslavia was that "in 1992 there will b e
eight countries in Europe : Western Europe, Eastern Europe and th e
six countries of Yugoslavia ." By 1990, the joke had changed : ther e
will be
seven
countries : Europe and the six countries o f
Yugoslavia . But perhaps the joke is too optimistic about Europe ,
and too pessimistic about Yugoslavia .
First, Europe : the idea that Europe can finally unite is a n
attractive one . Whether it is a realistic one is another question .
Certainly the other countries of Europe have historical tradition s
of hostility that are at least as deeply rooted as any i n
Yugoslavia ." At some point the interests of "Europe" are likel y
to conflict with what the government of one or more of th e
countries chooses to view as being in that country's "interest . "
57
At that stage, when local politicians attempt to make politica l
capital by playing against other European nations, the efficacy o f
the various European Community mechanisms may turn out to b e
lacking . The recent experience of Yugoslavia suggests the inheren t
weaknesses of confederal structures ; and if the European nation s
are not willing to surrender elements of their sovereignty, th e
capacity of the institutional machinery of the Community t o
function may be compromised .
Second, Yugoslavia : it seems likely that public sentiment i n
regard to the continued existence of Yugoslavia as an entity i s
still in the process of formation . Polls from most parts of th e
country indicate support for the continued existence of some kin d
of Yugoslav state ; and even in Slovenia and Croatia after th e
elections, as mentioned earlier, the most popular politician i n
public opinion polls is Ante Markovic, the head of the FEC, rathe r
than the just-elected heads of nationalist governments (see Borba ,
21 May 1990 :7) . Further, the unsavory implications of extrem e
nationalist positions are becoming apparent to many Yugoslavs . Th e
same polls show that the most unpopular politicians throughout th e
country are those seen as extreme nationalists : Franjo Tudjman ,
Slobodan Milosevic, and Vuk Draskovic .
Finally, the rise of nationalist parties in Yugoslavia i s
accompanied by a political discourse that reveals anti-democrati c
tendencies . For example, the demand of right-wing parties i n
Slovenia and Croatia that abortion be banned, not on grounds o f
morality or an asserted right to fetal life but rather because i t
58
should be the duty of women of those groups to produce new Slovene s
or Croatians
(Borba,
March 3-4, 1990 :4 ;
NIN,
March 4, 1990), i s
reminiscent of the excesses of practitioners of the worst element s
in the European political tradition : Hitler, Stalin and Ceausescu .
Further, it is possible that the racism implicit in this positio n
on abortion is deeply European, symptomatic of the contradictio n
between the European ideological fixation on individualism yet a t
the same time seeing "nations" as sovereign (cf . Dumont 1977 :12 ;
1986 :149-179) . From this perspective, the threatened fracturin g
of Yugoslavia into nation-states, each struggling to achieve ethni c
purity at all costs, may be a harbinger of the revival of
a
politics that had supposedly been buried, if not the forerunner o f
similar movements in other European countries .
Thus it is possible that the recent experience of Yugoslavi a
may be symptomatic of some of the negative tendencies of th e
European political tradition : Europe may yet fracture .
Or ,
conversely, it may be that Yugoslavia itself does not fracture ,
but rather discovers first, political, and then institutiona l
mechanisms for preserving a multi-national entity . But i f
Yugoslavia does not succeed in the latter task, its failure may b e
a warning to the rest of Europe .
CONCLUSIONS AND IMPLICATIONS FOR U .S . POLIC Y
1 . The confederal position, or assertion of absolute supremac y
by a Yugoslav republic, is a new interpretation of the constitutio n
of 1974, which draws on some elements of that document but ignore s
59
other parts of it .
It is a departure from all previou s
understandings of Yugoslav constitutional law .
2. The confederal position must lead to stalemate in regar d
to reform of the Yugoslav economic and political systems, since i t
renders the federal constitution meaningless . Accordingly, in s o
far as the confederal position obtains, reforms will be i n
jeopardy .
3.
The confederal position is both caused by
nationalis t
feelings and serves to promote them . In so far as it frees loca l
majorities of supervision by any overarching federal power, i t
enables them to oppress local minorities, and there are signs tha t
such oppression is occurring in Croatia, Serbia and Slovenia .
4. The confederal position threatens the continued existenc e
of Yugoslavia as a state . Yet most Yugoslavs still seem in favo r
of the country's continued existence, and the disintegration o f
Yugoslavia would very likely be disastrous . The United State s
should discourage adoption of the confederal doctrine and encourag e
the development of a truly federal system in Yugoslavia .
5. Recognizing the tendency of local majorities to oppres s
local minorities, the United States should press all of th e
Yugoslav republics which declare their sovereignty to respect th e
human rights of their minority populations . In particular, the
United States should insist that members of local minorities no t
be discriminated against, and that the asserted sovereign right s
of national groups not be used to justify the oppression o f
minorities within their territories .
60
NOTE S
1. The major arguments on the need for systemic changes followin g
the constitutional amendments of 1988 are contained in the variou s
contributions to a "scientific conference" on "Conceptions for a
New Constitution" (Marxist Center of the City of Belgrade, 1989) ,
held at the Belgrade University Law Faculty on 29 May, 1989 .
2. The federal question in Yugoslavia is also interesting becaus e
of the potential parallels and contrasts it affords with simila r
issues in the Soviet Union . However, consideration of the Sovie t
case is beyond the scope of this paper .
3. The "Slovenian National Program" appeared in the journal Nov a
Revija, no . 57 (1987) . Further elaborations of that program ca n
be found in Hribar (1989) .
4. The polemical debate on this subject has been a staple of th e
Yugoslav mass media and of professional journals since at leas t
1987 . It is therefore hard to canvas, but a the contours of th e
debate up through the beginning of 1989 can be traced an d
documented in a major Slovenian-Croatian contribution to it b y
Ciril Ribicic and Zdravko Tomac (1989), provided that one remember s
that these writers advance their own polemic, and are thus no t
neutral reporters of the words of others .
5. On the other hand, the relationship of the two Autonomou s
Provinces of Kosovo and Vojvodina within the republic of Serbia ha s
changed, following the November 1988 amendments to the Constitutio n
of Yugoslavia and the March, 1989 amendments to the Constitutio n
of the Republic of Serbia . The thrust of the amendments has bee n
to increase Republican control over the Provinces, though th e
latter still maintain considerable formal autonomy . More recently ,
a draft of a new constitution for the republic of Serbia woul d
eliminate most of the autonomy still retained by the two province s
(see Borba, 16 May 1990 :7) . These changes need not concern us a t
present, however, as they do not impinge directly on th e
federalism/confederalism debates at the center .
6. The first draft of the Slovenian amendments that was circulate d
for public discussion was entitled Osnutek amandmajev k ustavi S R
Slovenije; it was prepared by a committee of the Slovenian Assembl y
and was discussed by the full assembly in March and April of 1989 .
This draft was released for public discussion, and published i n
Delo, later that spring .
7. The Yugoslav Constitution, like most national constitutions ,
contains material that is prefatory to the operative parts of th e
Constitution, or the Constitution proper . In law, such prefatory
materials are not considered to be enforceable in the same way a s
61
the provisions of the constitution, but rather are considere d
primarily as aids to interpretation of the constitution proper .
This is the position taken by the dean of Yugoslav constitutiona l
theorists, Jovan Djordjevic (1982 :129-130) . The distinction i s
important in regard to the issue of whether the republics o f
Yugoslavia possess the right under the federal constitution to
secede ; see below, Note 8 .
8. The constitutional difficulty in this regard is that the righ t
to secession is only mentioned in the introductory part of the
Constitution, while the stipulation that the external boundarie s
of Yugoslavia can be changed only with the consent of all republic s
(art . 5) is in the operative text . This discrepancy is one reaso n
why the Yugoslav constitutional situation in regard to secessio n
is less clear than that of the USSR . In the soviet constitution ,
art . 72 clearly grants each republic the right "freely to secede . "
9. International Covenant on Economic, Social and Cultural Rights ,
adopted and opened for signature, ratification and accession b y
vote of the General Assembly of the United Nations, Genera l
Assembly Resolution 2200 A (XXI) of 16 Dec . 1966 ; entered int o
force on 3 January 1976 .
10. Borba,
specijalno izdanje : "Amandmani Dele Jugoslaviju . "
Beograd, October 1989 .
11. "Delovno Besedilo Predloga Amandmajev k ustavi SR Slovenije, "
Porocevalec, (Ljubljana), July 17, 1989 .
12. "Amandmani na Ustav SR Slovenije" (specijalni dodatak) . Borba ,
August 7, 1989 .
13. Lest this seem too extreme an interpretation, it should b e
noted that in the climate of nationalist fervor in 1990, even thes e
specifically protected national minorities came under attack . I n
an interview in Delo in June, 1990, the new Slovenian Minister fo r
External Affairs, Dr . Dimitrije Rupel, was quoted as saying tha t
he was concerned by "certain actions" of the Italian ethni c
minority in Slovenia and that he warned them not to continue . Thi s
"warning" prompted a protest by Slovene-Italian members of th e
newly elected Slovenian assembly . (Borba, 13 June 1990 :6) .
14. I am indebted to Professor Stevan Lilic for this formulatio n
of a solution to the definitional problem .
15. Borba Special edition, "Amendments that Split Yugoslavia," p .
3.
16. In what follows, it is necessary to keep in mind the cumbersom e
nature of the process of amending the Yugoslav constitution of
1974 . The FEC, among several other bodies, can propose proceeding s
to initiate amendments (art . 399), which was the step taken here .
62
This step must be approved by the parliaments of all of th e
republics and provinces before concrete steps can be taken to draf t
amendments (art . 400) . The amendments themselves are drafted b y
the Federal Assembly, then submitted for discussion to the severa l
republics and provinces (art . 401) . So what the Presidency, th e
FEC and other proponents of amendments did was to issue detaile d
proposals for initiating amendments, stating the general goals (or ,
in the case of the Presidency ' s proposal, detailed drafts o f
amendments) . Consent to the proposal could thus not be seen a s
consent to any actual substantive change, although, as will b e
seen, some of the republics expressly rejected specific kinds o f
changes suggested in these proposals .
17. One of these proposals, submitted by the assembly of th e
Republic of Bosnia and Hercegovina, received little attention i n
the national press and seems not to have been of great importanc e
in the constitutional debates . For these reasons, it is no t
discussed here any further .
18. Indeed, there is strong evidence that the creation of the lowe r
federal judiciary in the United States was due largely to the nee d
to have a federal power available to enforce contractual claims i n
locations where local authorities and courts were hostile to non natives (see Freyer 1979) .
19. It is perhaps necessary to stress that the Yugosla v
constitutional stalemate cannot be ascribed to a "Balkan s
mentality" with its
corresponding "Byzantine politics," a s
suggested by some elements of the Western press (and the press fro m
the western parts of Yugoslavia)(see, e .g .,
" Bullying in th e
Balkans"
[editorial],
New
York
Times,
April 18 1989 :18) .
Unfortunately, the Orientalist tone of much of the popular and eve n
scholarly writing on Yugoslavia is beyond the scope of this pape r
(see, however, Bakic-Hayden 1990) . However, readers should not e
the irony that the Balkanization of Yugoslavia has been promote d
most by those republics that are not physically in the Balkans !
63
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